Employer Loses a Discrimination Case Based on a “Cat’s Paw” Argument

Last week, the United States Supreme Court ruled in favor of an employee who had alleged he was terminated from his job as a technician at a hospital, due to his military service. Staub v. Proctor Hospital. The employee claimed he had been discriminated against in violation of the Uniformed Services Employment and Re-employment Rights Act (USERRA).

Mr. Staub argued that the anti-military hostility of two supervisors had wrongly influenced the final decision-maker, who made the decision to terminate his employment. The case is troubling because there was no proof the decision-maker was aware of the supervisors’ hostility towards Mr. Staub’s military service, or even that she shared in the supervisors’ hostility towards military obligations. The Court stated, “We therefore hold that if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if the act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” The Court aggregated the supervisors’ military hostility and attributed it to the decision maker and her decision to terminate Mr. Staub. The Court remanded the case to the Seventh Circuit to determine if a new trial was warranted.

Mr. Staub’s legal argument of the case is known as a "cat’s paw" theory. The theory stems from a 1600’s fable by Jean de la Fontaine, where a monkey induces a cat through flattery, to extract roasting chestnuts from a fire. After the cat has removed the chestnuts, burning his paws in the process, the monkey runs off with the chestnuts and leaves the cat with nothing but his burned hands. Translated to employment law, an employer can be held liable for discrimination when it can be established the final decision-maker was influenced to take an adverse employment action against an employee (such as termination in the Staub case) through the actions of a lower-level employee who has discriminatory motives.

The difficulty in the case, lies in determining what was the motivating factor of the employer in deciding to terminate Mr. Staub’s employment. The lower court noted, the internal investigation conducted by the employer could have been “more robust.” This means there were skimpy facts on the record to support that the termination was for any other reason, but for the actions taken by the supervisors who had exhibited military hostility. This affords a small nugget for employers to take away from the case, when assessing termination decisions in the future.

Employers should:

Make sure their workplace investigations are independent and thorough. This is especially true if an investigation concerns allegations of discrimination against a supervisor.

Accurately document work performance issues and conduct annual performance evaluations of both employees and supervisors.

Review and update workplace complaint procedures and make sure everyone is aware of them.

Document all employee complaints and be sure to include documentation regarding the outcome of the complaint.